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COA reverses in another D.J.W. win for failure to make specific factual findings

Winnebago County v. A.P.D., 2023AP863, 12/13/23, District II (one-judge decision; ineligible for publication); case activity

In yet another defense win reliant on Langlade County v. D.J.W.,  COA holds that the circuit court failed to make adequate findings in this Chapter 51 appeal.

“Andrew” challenges a recommitment order based on the fifth standard. (¶3). He argues that the evidence was insufficient to find either that he was mentally ill or that he was dangerous under the statutory standard (or, alternatively, that the circuit court failed to make sufficient findings with respect to dangerousness). (¶7). We’ll start with the defense win on dangerousness first.

Here, COA is “cognizant of the idiosyncrasies that surround involuntary commitment proceedings: they take place at a rapid pace, leaving trial courts with little time to rule; they concern extremely vulnerable individuals who most often do not recognize the danger to their personal safety or that of the community writ large; and they carry the awesome power to severely curtail an individual’s liberty and personal rights.” (¶17). Given the unique nature of the underlying proceeding, COA reads D.J.W. for the proposition that while “magic words” or “voluminous statements of fact” are not required, the circuit court “must still do more than merely repeat the statutory language.” (Id.).

Here, the circuit court’s findings were exceptionally sparse. (¶20). Specifically, COA faults the circuit court for not making sufficient findings with respect to the second element of the fifth standard, “whether Andrew was ‘incapable’ of applying or expressing an understanding of his mental illness and treatment needs and whether such incapability was because of his mental illness[…].” (¶21). And, while COA holds that it is not precluded from searching the record for evidence to support the court’s oral ruling, (¶11), the County failed to admit a doctor’s report into evidence which could have buttressed the circuit court’s comments. (¶20). The County is also faulted for not asking the court to clarify its ruling and conform its comments to the D.J.W. standard. (Id.). COA therefore follows SCOW’s recent holding in Sheboygan County v. M.W. and grants Andrew’s request for outright reversal. (¶22).

If you are keeping track of recent trends in 51 appeals, this opinion follows in a long-line of D.J.W. reversals and fits in with the (somewhat expansive) reading of that authority from Waupaca County v. J.D.C.which held that it isn’t good enough to simply cite a statutory standard (as some had assumed); rather, the circuit court needs to make specific factual findings which track the elements of an identified dangerousness criterion. However, because this case–like J.D.C.–involves a relatively bare-bones record, we still don’t have a good answer of where the ultimate line will be drawn in separating sufficient from insufficient factual findings. Lacking more precise guidance, it appears that such D.J.W. claims continue to be arguably meritorious in many, if not most, 51 appeals.

One other point before moving on: The opinion leaves open to what extent COA can use the record–including a doctor’s report, if admitted into evidence–to rescue the circuit court’s deficient factual findings. Here, COA holds it can search the record for evidence to affirm, but also rejects a closely-related harmless error argument from the County in a footnote, holding that application of a harmless error analysis would effectively “gut” D.J.W. (¶21). Thus, while COA holds that a court cannot simply say “Ditto” to an expert’s testimony, it also holds, confusingly, that if the expert’s report was admitted, COA can use that document to uphold otherwise deficient factual findings. Given the recurrence of D.J.W.  wins of late, this issue may eventually be headed to SCOW.

Andrew also challenges the sufficiency of the evidence with respect to the court’s finding that he was mentally ill. (¶13). Thus, even though the expert testified that Andrew was diagnosed with bipolar disorder, Andrew argues that this “conclusory” testimony was insufficient. (Id.). However, the circuit court, as the arbiter of credibility, accepted the doctor’s testimony and relied on it; because there is nothing in the record to establish this was clearly erroneous, COA easily rejects Andrew’s argument. (¶16).

While COA’s resolution of the issue on the merits is non-controversial, it is worth pointing out that COA also holds that Andrew forfeited his challenge to the sufficiency of the evidence on this prong by not objecting to the mental health diagnosis during the recommitment hearing. (¶14). It therefore accuses him of “sandbagging.” (Id.). Yet, in a footnote addressing his sufficiency challenge with respect to dangerousness, COA rejects the County’s forfeiture argument by pointing out that sufficiency challenges can be raised for the first time on appeal. (¶23). The apparent inconsistency is not further explained.

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